TO: /
EMSC Committee
FROM: / Johanna Duncan-PoitierSUBJECT: / Proposed Amendments to the Regulations of the Commissioner Relating to Pupil Transportation
DATE: / July 14, 2008
STRATEGIC GOAL: / Goals 2, 3 and 4
AUTHORIZATION(S):
SUMMARY
Issue for Decision
Should the Board of Regents adopt as a permanent rule, the proposed new section 156.3(h) of the Commissioner’s Regulations to prescribe requirements to minimize the idling of school buses and other vehicles?
Reason(s) for Consideration
Required by State statute.
Proposed Handling
This proposed amendment will come before the EMSC Committee and the Board of Regents at the July 2008 Regents meeting for adoption as a permanent rule.
Procedural History
The proposed amendment was discussed by the Committee at the April 2008 Regents meeting, and was subsequently revised in response to public comment and adopted as an emergency rule at the June 2008 Regents meeting.
Background Information
The proposed regulation is necessary to implement Education Law section 3637, as added by Chapter 670 of the Laws of 2007, which directs the Commissioner to promulgate regulations requiring school districts to minimize, to the extent practicable, the idling of the engine of any school bus and other vehicles owned or leased by the school district while such bus or vehicle is parked or standing on school grounds, or in front of any school.
New York State has the largest fleet of school buses in the nation with over 50,000 vehicles transporting over 2.5 million pupils each day over 225 million miles annually. As a result our children are being exposed to sizeable hazards from school bus emissions. Children are even more susceptible to air pollution than adults because their respiratory systems are still developing and they have a faster rate of breathing. Diesel exhaust contains billions of small particles that can cause lung damage and aggravate asthma, bronchitis and other health problems.
The United States Environmental Protection Agency has been concerned about the idling of school buses in New York State. They performed a study on school bus idling using the Katonah-Lewisboro School District. The study was specifically designed to determine which of several different methods of running a school bus engine during the winter months was the most effective in reducing emissions while providing cost efficient and safe pupil transportation services. The study results clearly showed that the most effective method is turning the bus engine off.
The State Education Department in consultation with the Health Department have determined that the most effective method for reducing emissions and school bus idling in order to protect children with asthma and other respiratory conditions, is to apply the regulation to all school districts. One third of our student population resides in areas of the State where the air quality is compromised. The United States Environmental Protection Agency has found that exhaust fumes are polluting the air in our communities and can enter school buildings through fresh air intakes, doors and open windows. They have identified 21 chemicals in truck and bus emissions that are known or suspected to cause cancer and other serious health conditions. These emissions can hurt the entire population leading to increased hospital admissions, emergency room use, school absences and work loss.
For these reasons it is important that we not limit the protection afforded our children to those whose respiratory health is already compromised, but take firm steps to insure that all of our children are protected from the harmful effects of pollutants from idling school buses.
A Notice of Proposed Rule Making was published in the State Register on April 2, 2008. A Notice of Revised Rule Making was published in the State Register on June 11, 2008. An Assessment of Public Comment on the revised rule is attached. Supporting materials are available upon request from the Secretary to the Board of Regents.
Recommendation
Staff recommend that the Regents take the following action:
VOTED: That subdivision (h) of section 156.3 of the Regulations of the Commissioner be added as submitted, effective August 21, 2008.
Timetable for Implementation
The proposed rule was adopted by emergency action at the June 2008 Regents meeting, effective July 1, 2008. If adopted at the July Regents meeting, the effective date of the permanent rule will be August 21, 2008.
Attachment
PROPOSED ADDITION OF SECTION 156.3(h) OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO EDUCATION LAW SECTIONS 207, 3624 AND 3637, AND CHAPTER 670 OF THE LAWS OF 2007, RELATING TO SCHOOL BUS AND OTHER VEHICLE IDLING ON SCHOOL GROUNDS
ASSESSMENT OF PUBLIC COMMENT
Since publication of a Notice of Revised Rule Making in the State Register on June 11, 2008, the State Education Department received the following comments:
1. COMMENT:
The American Lung Association of New York State commended SED for its decision to require idling restrictions in all public school districts and to require that school buses park diagonally in school loading areas.
DEPARTMENT RESPONSE:
We concur with this comment. The State Education Department, in consultation with the New York State Department of Health, has determined that the most effective method for reducing emissions and school bus idling in order to protect children with asthma and other respiratory conditions, is to apply the regulation to all school districts. The revision to the rule regarding diagonally parking was made in order to minimize exhaust that may enter school buildings as well as school buses.
2. COMMENT:
The rule exceeds the authority provided by the statute. Had the Legislature intended a statewide requirement, it would have imposed it.
DEPARTMENT RESPONSE:
The proposed rule does not exceed the authority provided by the statute. Education Law section 3637(1), as added by Chapter 670 of the Laws of 2007 authorizes the Commissioner of Education to adopt regulations to implement the statute's provisions and provides the regulations ". . . shall apply to school districts identified by the commissioner, in consultation with the department of health, with a significant number of children with asthma and those other school districts deemed by the commissioner as appropriate [emphasis added]."
In developing the proposed rule, the State Education Department consulted with the Department of Health (DOH) and discussed the incidence of asthma in New York State schools. DOH indicated it had no objection to the rule. The statute did not specify a standard for what was to be considered a "significant number of children with asthma" and appropriate and current date was not available to determine which school districts were most affected by school bus diesel emissions. Based upon health, safety and other considerations discussed in Needs and Benefits section of the previously published Regulatory Impact Statement, and consistent with the statute's directive to minimize the idling of school buses and other vehicles, the rule has been drafted to apply to all public school districts in the State.
3. COMMENT:
School districts and private bus operators are already implementing aggressive anti-idling programs for environmental as well as fuel and economic reasons. They do not need a new and unnecessary regulation to initiate such efforts. More could be done by an aggressive anti-idling campaign to instruct school bus drivers on this issue than implementing new regulations.
DEPARTMENT RESPONSE:
SED recognizes and appreciates the efforts of the school bus community to voluntarily implement anti-idling programs to protect the health of pupils and the environment. School districts and private bus operators are to be commended for their efforts to reduce harmful emissions from school buses and to conserve fuel. SED had encouraged districts and operators to take such action by developing and implementing an Anti-Idling Campaign in 2004 to educate school bus drivers about the importance of reducing idling, and about common misconceptions regarding the necessity to continue idling school buses. However, such actions were not deemed to be sufficient and the Legislature passed a law specifically to reduce school bus idling. This statute further required the Commissioner to adopt regulations which minimize restrict the amount of idling by school buses. The proposed rule will enact uniform State-wide standards to ensure that all school districts and their contractors act to minimize school bus idling.
4. COMMENT:
The regulation imposes new mandates upon districts which go beyond the provisions of the statute such as requiring additional reporting and record-keeping, monitoring driver actions regarding idling, and urging school drivers to expedite the prompt loading of pupils.
DEPARTMENT RESPONSE:
The rule does not impose any new mandates which are not consistent with a school district’s responsibility to insure their compliance with the statutory requirement. Previous comments were received which requested that school bus drivers urge students to expedite loading the bus. The Council of School Superintendent’s suggested language to modify the requirement to conduct monitoring and maintain records which show compliance. These requests and suggestions were incorporated in the revised regulation, published in the State Register on June 11, 2008. The revised regulation provides more flexibility to school districts to monitor and report compliance with the rule's provisions, including replacing a requirement for two monitoring reviews at specified months, with a requirement that districts periodically but at least semi-annually monitor compliance; and replacing a requirement that the monitoring report include the name of each driver, the date, and the degree of adherence found, with a requirement that the report describe the actions taken to review compliance and the degree of adherence found.
AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION
Pursuant to Education Law sections 207, 305 and 3637 and Chapter 670 of the Laws of 2007
Subdivision (h) of section 156.3 of the Regulations of the Commissioner of Education is added, effective August 21, 2008, as follows:
(h) Idling school buses on school grounds.
(1) General provisions.
(i) Except as provided in paragraph (2) of this subdivision, each school district shall ensure that each driver of a school bus, as defined in Vehicle and Traffic Law section 142, or other vehicle owned, leased or contracted for by such school district, shall turn off the engine of such school bus or vehicle while waiting for passengers to load or off load on school grounds, or while such vehicle is parked or standing on school grounds or in front of or adjacent to any school.
(ii) School districts shall consider adopting policies which provide for the prompt loading and unloading of individual school buses rather than a policy of waiting for all buses to arrive before loading or unloading.
(2) Exceptions. Notwithstanding the provisions of paragraph (1) of this subdivision and unless otherwise required by State or local law, the idling of a school bus or vehicle engine may be permitted to the extent necessary to achieve the following purposes: (i) for mechanical work; or (ii) to maintain an appropriate temperature for passenger comfort; or (iii) in emergency evacuations where necessary to operate wheelchair lifts.
(3) Driver requirements. Each school district shall ensure that each driver of a school bus shall:
(i) instruct pupils on the necessity to board the school bus promptly in the afternoon in order to reduce loading time;
(ii) whenever possible, park the school bus diagonally in school loading areas to minimize the exhaust from adjacent buses that may enter the school bus and school buildings; and
(iii) turn off the bus engine during sporting or other events.
(4) Notice. Each school district shall annually provide their school personnel, no later than five school days after the start of school, with notice of the provisions of Education Law section 3637 and of this section, in a format prescribed and provided by the Commissioner to such school districts for dissemination.
(5) Monitoring and reports. Each school district shall periodically but at least semi-annually monitor compliance with the provisions of this subdivision by school bus drivers and drivers of vehicles owned, leased or contracted for by such school district. Each school district shall prepare a written report of such review, which shall describe the actions taken to review compliance and the degree of adherence found with the provisions of this subdivision. Copies of the report shall be retained in the school district's files for a period of six years and made available upon request. The Commissioner may also require specific school districts to provide additional information as necessary to address health concerns related to their compliance with the provisions of this subdivision.
(6) Private vendor transportation contracts. All contracts for pupil transportation services between a school district and a private vendor that are entered into on or after August 21, 2008, shall include a provision requiring such vendor's compliance with the provisions of this subdivision .